64 Wis. 573 | Wis. | 1885
This action was brought by the i-espondent to recover damages for injury to a horse, occasioned by the insufficiency and want of repair of a bridge upon one of the highways of the defendant town, and he recovered judgment therein, from which this appeal is taken. The facts in evidence will sufficiently appear in the consideration of the exceptions argued by the learned counsel of the appellant.
1. The admission in evidence of the written notice to the town required to be given by sec. 1339, R. S., ninety days after the happening of the event which caused the damage, as a condition precedent to maintaining the action. There were two such notices offered in evidence: one for the purpose of such notice as above required, and the other as the statement of the plaintiff’s claim, filed with the town clerk, to be laid before' the town board of audit, as required by sec. 824, R. S. These notices were alike, except it is claimed the first of said notices bore date January 11,1884, and the other December 11, 1883. When offered, the date of the first notice, January 11, 1884, was erased, and the date December 11, 1883, was written. It was not conclusively proved that such alteration was made before its service on one of the supervisors of the town, but the plaintiff, as a witness, testified that he thought it was, and the testimony was sufficiently positive that the notice was served at the last-mentioned date. The date of the notice is quite immaterial, but it was necessary to prove the time when it
2. The court refused to strike out the testimony that the bridge had many holes in it at other places than where the horse stepped through and was injured, and that the bridge was generally out of repair and the planks rotten and decayed, a few days before the accident. The refusal was based upon the ground that such condition of the bridge was pertinent to the question of notice to the town authorities of the defect which caused the injury. We think the testimony was proper with that view, because if the authorities had done their duty in repairing other places of defect of which they might be presumed, from their number and character, to have had notice, they would have probably discovered the defect in question. This defect was not such as to be dangerous except because the planks of the bridge were rotten and decayed underneath at the cracks or spaces where they came together. The space between the planks at this point, at the top or surface, was not wide enough to admit a horse’s foot and leg, but by reason of the decay on their under side, when the horse’s foot pressed upon the edges of the planks at this spot, they broke through and made a hole large enough for it to go through. This appeared to be the general defective condition of the bridge. The planks were laid lengthwise, and these cracks were the weak and defective places in consequence of such decay. This is what we understand from the evidence. It was generally a very bad and defective bridge and unsafe, and its condition was such that we think the town authorities should be held to have had notice of it, and of all such de-
3. The circuit court refused to grant a nonsuit on the motion of the defendant based, first, upon the statutory liability of the village of Clintonville, in which said bridge is situated, or of the county of "Waupaca, to keep the same in repair. This bridge was built by the defendant town, on a highway known as the New London and Shawano road, after the village was incorporated under the general law out of a portion of said town. There was no evidence that this highway had ever been adopted as a county road, so as to make the county hable to keep it, or the bridges thereon, in repair, or for damages occasioned by its not being kept in repair. Sec. 1339, R. S.; Stilling v. Thorp, 54 Wis. 528. The law controlling and fixing the liability to keep this bridge in repair is contained in sec. 910, R. S. This section is in the chapter entitled “ Of Tillages,” which provides for their creation and incorporation “out of a part of any town,” and first provides that the town shall not be liable to keep the streets and highways in such village in repair, etc., and then provides that “ all bridges in such village shall be built, maintained, and repaired by the town in which the same is situated.” This language would seem to be sufficiently explicit. But the learned counsel of the appellant contends that sec. 1339, R. S., which provides that “ if any damage shall happen to any person, his horses,” etc., “ by reason of the insufficiency or want of repairs of any bridge,” etc., “ in any town, city, or village, the person sustaining any such damage shall have a right to sue for and recover the same against any such town, city, or village,” conflicts with the above section, and, being subsequent in the revision, repeals that part relating to bridges in villages. It seem to us, however, that the village mentioned in this section is such as is incorporated by special charter, in
The second ground of the motion for a nonsuit, that the proper verified claim of the plaintiff was not filed with the clerk and board of audit according to ch. 113, Laws of 1882, was untenable, because this statute does not enlarge the class of claims embraced in sec. 821, R. S., and that section only refers to accounts, and not to a claim for damages arising ex delicto. Jaquish v. Ithaca, 36 Wis. 108.
Third. The plaintiff had knowledge of the defect before he drove on that part of the bridge. If he had such knowledge, still it was a question for the jury, whether he was negligent. Cuthbert v. Appleton, 24 Wis. 383; Wheeler v. Westport, 30 Wis. 392. But the extent of this particular hole or crack the plaintiff did not know, for its width on the surface was not large enough for a horse’s foot to go through until it had been enlarged by its weight breaking through the decayed plank.
As to the instructions of the court to the jury: (1) The instruction that it was undisputed that the bridge was a part of the highway, and had been used as such without any action of the village to adopt it as a street, etc., was immaterial, whether correct or not, because the law fixes the liability of the town for this bridge on a town road, and there had been no municipal action on the part of the town or village to make this road into a street, so as to vacate it as a town road. The street superintendent of the village may have repaired some few places of defect a short time before the accident, but that, as we have said, was voluntary, and could not transfer the liability to keep the bridge in repair from the town to the village. (2) This instruction stated the law of the town’s liability as we now hold, and was correct. (3) The instruction that the town was guilty of negligence was most clearly correct from the
The instructions were very full, fair, and correct, and we think there was ample evidence to warrant the jury in finding for the plaintiff. The only possible apology for the town for such negligence in not keeping this bridge in repair is in the fact of there being some question as to whether it was the duty of the town or village to do so.
By the Gowt.— The judgment of the circuit court is affirmed.